Opinion
2013-04-24
Lorraine PLATT, respondent, v. NEW YORK CITY HEALTH AND HOSPITALS CORPORATION (“HHC”), et al., appellants.
Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Pamela Seider Dolgow and Ellen Ravitch of counsel; Joshua Tey on the brief), for appellant New York City Health and Hospitals Corporation (“HHC”). Lozner & Mastropietro, Brooklyn, N.Y. (Elizabeth Mark Meyerson of counsel), for respondent.
Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Pamela Seider Dolgow and Ellen Ravitch of counsel; Joshua Tey on the brief), for appellant New York City Health and Hospitals Corporation (“HHC”). Lozner & Mastropietro, Brooklyn, N.Y. (Elizabeth Mark Meyerson of counsel), for respondent.
DANIEL D. ANGIOLILLO, J.P., RUTH C. BALKIN, LEONARD B. AUSTIN, and ROBERT J. MILLER, JJ.
In an action to recover damages for personal injuries, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Velasquez, J.), dated March 23, 2012, as granted the plaintiff's motion pursuant to General Municipal Law § 50–e(5) to deem the late notice of claim served upon the defendant, New York City Health and Hospitals Corporation (“HHC”), timely served nunc pro tunc.
ORDERED that the appeal by the City of New York is dismissed as abandoned; and it is further,
ORDERED that the order is reversed insofar as appealed from by the defendant New York City Health and Hospitals Corporation (“HHC”), on the law and in the exercise of discretion, with costs, and the plaintiff's motion to deem the late notice of claim served upon the defendant, New York City Health and Hospitals Corporation (“HHC”), timely served nunc pro tunc is denied.
The appeal by the City of New York must be dismissed as abandoned, as the appellant's brief has been submitted only on behalf of the defendant New York City Health and Hospitals Corporation (“HHC”) (hereinafter the HHC).
On November 12, 2010, the plaintiff allegedly was injured in a collision between her automobile and an automobile owned by the HHC. On February 11, 2011, the plaintiff served a notice of claim upon the Comptroller of the City of New York (hereinafter the Comptroller). The plaintiff did not serve a notice of claim on the HHC until October 20, 2011. The plaintiff later moved to have the notice of claim deemed timely served. The Supreme Court granted the motion, and the HHC appeals.
Service of a notice of claim upon the HHC within 90 days after accrual of a claim is a condition precedent to commencing an action against HHC ( seeMcKinney's Uncons Laws of N.Y. § 7401[2] [L. 1969, ch. 1016, § 1 (§ 20[2] ), as amended by L. 1990, ch. 804, § 122]; General Municipal Law § 50–e[1][a]; Scantlebury v. New York City Health & Hosps. Corp., 4 N.Y.3d 606, 609, 797 N.Y.S.2d 394, 830 N.E.2d 292;Barnaman v. New York City Health & Hosps. Corp., 90 A.D.3d 588, 588, 934 N.Y.S.2d 443;Argudo v. New York City Health & Hosps. Corp., 81 A.D.3d 575, 576, 916 N.Y.S.2d 143). As the Court of Appeals has “long recognized,” the City of New York and the HHC are separate entities for purposes of a notice of claim ( Scantlebury v. New York City Health & Hosps. Corp., 4 N.Y.3d at 611, 797 N.Y.S.2d 394, 830 N.E.2d 292;Bender v. New York City Health & Hosps. Corp., 38 N.Y.2d 662, 665–666, 382 N.Y.S.2d 18, 345 N.E.2d 561;Barnaman v. New York City Health & Hosps. Corp., 90 A.D.3d at 588–589, 934 N.Y.S.2d 443). Accordingly, the plaintiff's service of a notice of claim upon the Comptroller was insufficient to constitute service upon the HHC ( see Scantlebury v. New York City Health & Hosps. Corp., 4 N.Y.3d at 613, 797 N.Y.S.2d 394, 830 N.E.2d 292;Barnaman v. New York City Health & Hosps. Corp., 90 A.D.3d at 589, 934 N.Y.S.2d 443).
In determining whether to grant an application for leave to serve a late notice of claim or to deem a late notice of claim timely served nunc pro tunc, the court must consider whether (1) the public corporation or its attorney or insurance carrier acquired actual knowledge of the essential facts constituting the claim within 90 days after the claim arose or a reasonable time thereafter, (2) the claimant made an excusable error concerning the identity of the public corporation against which the claim should be asserted, (3) the claimant demonstrated a reasonable excuse for the failure to serve a timely notice of claim ( seeGeneral Municipal Law § 50–e[5] ), and (4) the delay would substantially prejudice the public corporation in its defense on the merits ( see Matter of Mitchell v. Town of Greenburgh, 96 A.D.3d 852, 946 N.Y.S.2d 220;Matter of Gershanow v. Town of Clarkstown, 88 A.D.3d 879, 880, 931 N.Y.S.2d 131;Matter of Iacone v. Town of Hempstead, 82 A.D.3d 888, 888, 918 N.Y.S.2d 202).
The Supreme Court improvidently exercised its discretion in granting the plaintiff's motion. First, the plaintiff failed to demonstrate that the HHC had actual knowledge of the facts constituting the claim within 90 days after it arose or “within a reasonable time thereafter” (General Municipal Laws 50–e[5] ). The fact that a police accident report was prepared by the New York City Police Department did not constitute notice to the HHC of the essential facts constituting the claim ( see Matter of Klass v. City of New York, 103 A.D.3d 800, 959 N.Y.S.2d 738;State Farm Mut. Auto. Ins. Co. v. New York City Tr. Auth., 35 A.D.3d 718, 718, 828 N.Y.S.2d 416). In any event, the police report merely indicated that the plaintiff's vehicle was struck as it was pulling out of a parking spot, so it would not have put the HHC on notice of the “facts that underlie the legal theory or theories on which liability is predicated” ( Matter of Felice v. Eastport/South Manor Cent. School Dist., 50 A.D.3d 138, 148, 851 N.Y.S.2d 218).
Moreover, the plaintiff's mistake as to the identity of the public corporation against which her claim should be asserted was not excusable. The plaintiff had information as to the ownership of the HHC's vehicle before her time to serve a timely notice of claim expired ( see Matter of Moore v. New York City Hous. Auth., 89 A.D.3d 1088, 1088, 933 N.Y.S.2d 606), and it has long been the rule that the City of New York and the HHC are separate entities for purposes of notices of claim ( see Scantlebury v. New York City Health & Hosps. Corp., 4 N.Y.3d at 611, 797 N.Y.S.2d 394, 830 N.E.2d 292;cf. Bender v. New York City Health & Hosps. Corp., 38 N.Y.2d at 668–669, 382 N.Y.S.2d 18, 345 N.E.2d 561). Indeed, even after learning of the identity of the proper defendant, the plaintiff delayed for two months in moving to have her late-served notice of claim against the HHC deemed timely served ( see Matter of Dell'Italia v. Long Is. R.R. Corp., 31 A.D.3d 758, 759, 820 N.Y.S.2d 81;Matter of Morris v. County of Suffolk, 88 A.D.2d 956, 956–957, 451 N.Y.S.2d 448,affd.58 N.Y.2d 767, 459 N.Y.S.2d 38, 445 N.E.2d 214;cf. Goldberg v. County of Suffolk, 227 A.D.2d 482, 482, 642 N.Y.S.2d 928).
Finally, the plaintiff failed to demonstrate that her delay did not prejudice the HHC in its defense on the merits. The plaintiff did not serve a notice of claim upon the HHC until eight months after the 90–day period expired and then did not move for two more months to have that late notice of claim deemed timely ( see Brandi v. City of New York, 90 A.D.3d 751, 751, 934 N.Y.S.2d 340;Matter of Hill v. New York City Tr. Auth., 68 A.D.3d 866, 867, 890 N.Y.S.2d 627;Matter of Felice v. Eastport/South Manor Cent. School Dist., 50 A.D.3d at 152, 851 N.Y.S.2d 218).
In light of all of these factors, none of which is by itself determinative ( see Matter of Felice v. Eastport/South Manor Cent. School Dist., 50 A.D.3d at 147, 851 N.Y.S.2d 218), the plaintiff's motion to deem the late notice of claim served upon the HHC timely served nunc pro tunc should have been denied.